UsenetBinaries Counter-Notifes: Perfect 10 Takedown Is Imperfect -- Chilling Effects Clearinghouse

UsenetBinaries.com is a service provider, and is governed by the same DMCA provisions that Google itself is. Content is posted to the Usenet, a global network of distributed systems somewhat like the World Wide Web itself (see: http://en.wikipedia.org/wiki/Usenet) by users all around the world. Content is not generated nor reviewed by UsenetBinaries.com. We are an indexing service, like Google. We promptly respond to all DMCA takedown notices.

In addition, we take the extra step of blocking future postings of the same content by blocking MD5 identifying signatures of content items for which we receive notice. Finally, for Perfect 10, we have also extended our Usenet indexing software to block any content which matches a list of their model's names. These additional measures are not required by the DMCA, but we feel that these are additional steps that we can take to help protect those whose copyright may have been infringed by Internet users elsewhere on the Usenet.

Please find attached to this letter a list of material removed by you pursuant to 17 U.S.C. Section 512. I have a good faith belief that this material was removed or disabled in error as a result of mistake or misidentification of the material. I declare that this is true and accurate under penalty of perjury under the laws of the United States of America.

For the purposes of this matter, I consent to the jurisdiction of the Federal District Court for the judicial district in which 1 reside. I also consent to service of process by the person providing notification under Section 512(c)(1)(C) or that person's agent. However, by this letter, I do not waive any other rights, including the ability to pursue an action for the removal or disabling of access to this material, if wrongful.

I appreciate your prompt attention to this matter. If you have any questions about this notice, please do not hesitate to contact me.

FAQ: Questions and Answers

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Question: What are the DMCA Safe Harbor Provisions?

Answer: In 1998, Congress passed the On-Line Copyright Infringement Liability Limitation Act (OCILLA) in an effort to protect service providers on the Internet from liability for the activities of its users. Codified as section 512 of the Digital Millennium Copyright Act (DMCA), this new law exempts on-line service providers that meet the criteria set forth in the safe harbor provisions from claims of copyright infringement made against them that result from the conduct of their customers. These safe harbor provisions are designed to shelter service providers from the infringing activities of their customers. If a service provider qualifies for the safe harbor exemption, only the individual infringing customer are liable for monetary damages; the service provider's network through which they engaged in the alleged activities is not liable.

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Question: What does a service provider have to do in order to qualify for safe harbor protection?

Answer: In addition to informing its customers of its policies (discussed above), a service provider must follow the proper notice and takedown procedures (discussed above) and also meet several other requirements in order to qualify for exemption under the safe harbor provisions.

In order to facilitate the notification process in cases of infringement, ISPs which allow users to store information on their networks, such as a web hosting service, must designate an agent that will receive the notices from copyright owners that its network contains material which infringes their intellectual property rights. The service provider must then notify the Copyright Office of the agent's name and address and make that information publicly available on its web site. [512(c)(2)]

Finally, the service provider must not have knowledge that the material or activity is infringing or of the fact that the infringing material exists on its network. [512(c)(1)(A)], [512(d)(1)(A)]. If it does discover such material before being contacted by the copyright owners, it is instructed to remove, or disable access to, the material itself. [512(c)(1)(A)(iii)], [512(d)(1)(C)]. The service provider must not gain any financial benefit that is attributable to the infringing material. [512(c)(1)(B)], [512(d)(2)].

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Question: What are the counter-notice and put-back procedures?

Answer: In order to ensure that copyright owners do not wrongly insist on the removal of materials that actually do not infringe their copyrights, the safe harbor provisions require service providers to notify the subscribers if their materials have been removed and to provide them with an opportunity to send a written notice to the service provider stating that the material has been wrongly removed. [512(g)] If a subscriber provides a proper "counter-notice" claiming that the material does not infringe copyrights, the service provider must then promptly notify the claiming party of the individual's objection. [512(g)(2)] If the copyright owner does not bring a lawsuit in district court within 14 days, the service provider is then required to restore the material to its location on its network. [512(g)(2)(C)]

A proper counter-notice must contain the following information:

The subscriber's name, address, phone number and physical or electronic signature [512(g)(3)(A)]
Identification of the material and its location before removal [512(g)(3)(B)]
A statement under penalty of perjury that the material was removed by mistake or misidentification [512(g)(3)(C)]
Subscriber consent to local federal court jurisdiction, or if overseas, to an appropriate judicial body. [512(g)(3)(D)]

If it is determined that the copyright holder misrepresented its claim regarding the infringing material, the copyright holder then becomes liable to the person harmed for any damages that resulted from the improper removal of the material. [512(f)]

UsenetBinaries Counter-Notifes: Perfect 10 Takedown Is Imperfect

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